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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 08-1882

DEAN M. INMAN,
Plaintiff - Appellant,
v.
KLOCKNER PENTAPLAST OF AMERICA,
PENTAPLAST PARTICIPATIONS,

INCORPORATED;

KLOCKNER

Defendants Appellees,
and
KLOCKNER PENTAPLAST GROUP,
Defendant.
---------------------------------------AARP,
Amicus Supporting Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.
Norman K. Moon,
District Judge. (3:06-cv-00011-nkm-bwe)

Argued:

September 24, 2009

Decided:

October 22, 2009

Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and


Mark S. DAVIS, United States District Judge for the Eastern
District of Virginia, sitting by designation.

Reversed and remanded by unpublished per curiam opinion.

ARGUED: Adam Augustine Carter, EMPLOYMENT LAW GROUP, PC,


Washington, D.C., for Appellant.
Melvin Earl Gibson, Jr.,
TREMBLAY & SMITH, Charlottesville, Virginia, for Appellees. ON
BRIEF: R. Scott Oswald, EMPLOYMENT LAW GROUP, PC, Washington,
D.C., for Appellant.
Thomas E. Albro, Patricia D. McGraw,
TREMBLAY & SMITH, Charlottesville, Virginia, for Appellees.
Laurie A. McCann, Daniel B. Kohrman, AARP FOUNDATION LITIGATION,
Melvin Radowitz, AARP, Washington, D.C., for Amicus Supporting
Appellant.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Dean Inman appeals the grant of summary judgment against
him on his claim of discrimination under the Age Discrimination
in Employment Act, see 29 U.S.C.A. 623(a)(1) (West 2008), and
his request for declaratory judgment, both of which arise from
his assertion that he was improperly terminated.

We reverse the

grant of summary judgment and remand for further proceedings.

I.
Klckner Pentaplast of America, Inc. (KPA) is one of the
world's leading producers of films for pharmaceuticals, medical
devices,

food,

electronics,

and

general

purpose

thermoform

packaging, as well as printing and specialty applications.

In

2001, Cinven Company and J.P Morgan bought KPA for more than
$800 million, planning to cuts costs, increase profits, and resell the company in four or five years.

In 2007, they sold KPA

to a private equity firm for approximately $1.8 billion.


When he was fired by KPA in December 2005, Inman was 58
years

old

and

was

serving

as

Vice

President

of

Technology.

Inman had worked for KPA for 17 years, starting in 1988 as a


manager in training before eventually becoming head of KPAs
technical

department.

Inman

was

also

member

of

KPAs

Steering Team, an executive committee comprised of KPA senior


leadership that managed the company.
3

In 2003, Michael Tubridy became President of KPAs North


and South American Operations after having served unofficially
in that capacity for a few months.

Although Tubridy always

appreciated Inmans technical skills, he did not think much of


his leadership style.

In conducting a performance review of

Inman in December 2003, Tubridy expressed concern with Inmans


group

and

team

allocation
stated

of

that

personnel

leadership
staff

there

responsibilities

was

development

abilities.

room
and

for

He
as

Inmans

dysfunctional

improvement

succession

described

in

the

planning.

and

areas
J.A.

of

674.

Tubridy explained that he wanted Inman to create a commercial


development
goals

and

plan

for

metrics

his

that

department,
would

allow

plan

the

which

would

departments

set

actual

performance to be measured against the goals.


Inman resisted these requests, however, believing they were
not necessary in light of certain historical information kept on
the

technical

departments

computer

system.

In

early

2004,

after Mike Yeatts, director of KPAs human resources department,


emailed Inman a draft of the plan Tubridy sought, Inman informed
Yeatts that he rejected the plan in its entirety.

J.A. 613.

Inman explained in his deposition that the proposal was very


minimal in value, very sophomoric in its content, nothing of
value and that Inman did not understand why someone without
the

training,

apparent

training
4

in

such

issues

would

be

attempting
raised

to

this

provide

the

request

information.

again

during

J.A.

Inmans

679.

2004

Tubridy

performance

review, this time even sketching out the form that he wanted the
plan to take.

Inman still never developed the plan, however,

and

2005,

by

August

Tubridy

had

concluded

that

Inman

never

would.
Although

Tubridy

was

frustrated

with

Inmans

refusal

to

develop a plan to set measurable goals for his department, it


was a culmination of events over the course of several months in
2005 that Tubridy claims led to his decision to terminate Inman.
First,

Inman

balked

at

signing

non-compete

attempted to renegotiate some of its terms.

agreement

and

Tubridy apparently

found that response unprofessional, particularly since Inman was


at

the

same

department
attending

to
a

employment

time

requiring

sign

the

mandatory
interviews,

each

of

agreement.

the
Then

training

session

sending

sarcastic

employees
Inman

on

in

his

objected

how

to

emails

to

conduct

about

the

subject to the human resources department.


In

September

companys

2005,

financial

Tubridy

condition

decided

that

because

(which

had

worsened

of

the

after

Hurricanes Katrina and Rita disrupted their supplies and greatly


increased their costs), KPA needed to implement a wage freeze.
Tubridy
afternoon

presented
of

that

September

idea
14,

to
2005,
5

the

Steering

before

Team

scheduled

on

the

dinner

meeting for KPA supervisors.


unanimously

agreed

to

the

The Steering Team members present


freeze,

but

Inman

was

not

present

then--he was on his way to the dinner meeting from a KPA site in
West Virginia.

Tubridy says he pulled Inman aside during pre-

dinner cocktails and told him about the salary freeze, and he
formally announced the freeze during dinner later that night.
The next day, another member of the Steering Team told Tubridy
that he had heard that Inman was complaining about the salary
freeze.

Tubridy claims that he brought Inman in for a meeting,

to give Inman a chance to talk about the salary freeze again,


since the idea had been sprung on him the night before with
little notice.

Tubridy testified that Inman told him that he

understood why the freeze was necessary and that he supported


the companys decision.

Tubridy testified that he then told

Inman that he had heard that Inman had complained about the
decision and that Inmans immediate response was, I guess I
need to be careful what I share with Charlie Abbey.

J.A. 742.

Tubridy claims he understood that to be a confession of sorts


and therefore that Inman had just lied to him when he had said
he understood and supported the freeze.
Inmans version of events is different.

He maintains that

Tubridy did not tell him about the freeze ahead of time, and
that he learned about it when everyone else did, when Tubridy
announced it at the dinner.

Inman says that the day after the


6

announcement, he was in Charlie Abbeys office and listened to


Abbey

complain

about

the

freeze,

but

Inman

express disappointment concerning the freeze.

did

not

himself

As to the meeting

with Tubridy, Inman claims that Tubridy said he had heard that
Inman had some concerns about the freeze, and Inman told him
that he did have questions.

Inman said he mentioned Abbey only

because Abbey was known as a gossip within the company, hes


known to . . . tell whoppers, to sensationalize stories.
883.

J.A.

Inman insists that he never complained about the salary

freeze to anyone in the company.


According to Tubridy, the salary-freeze issue was the last
straw for him.

He believed that as a member of the Steering

Team, Inman should support the decisions made by the team, and
he also believed that Inman had lied to him about supporting the
freeze.

Tubridy claims he lost confidence in Inman at that

point, and essentially decided then that Inman had to be fired.


A couple of other events occurred after the salary-freeze
meeting that Tubridy contends reinforced his belief that Inman
needed to be replaced.

Sometime before the fall of 2005, the

Steering

to

Team

decided

insurance providers.

reduce

costs

by

changing

health

The new policy went into effect in October

2005, and as it turned out, led to an increase in the co-payment


for a medicine Inman was taking.
and

he

sent

an

email

to

This angered Inman greatly,

staffer
7

in

the

human

resources

department stating that he would hold KPA responsible for any


and all harm that is done to my health and/or any increase in my
out of pocket expenses as a result of our new insurance company
playing the role of dictating which medications I should and
should

not

inquiries

use.

J.A.

from

participation

in

the
a

618.

Additionally,

human

resources

retirement

program,

in

response

department

Inman

sent

to

about

emails

to

another human resources staffer complaining that he could not


afford

to

denigrating

participate
the

in

companys

light

of

decision

to

the

wage

implement

freeze
the

and

freeze.

Mike Yeatts, KPAs human resources director, told Tubridy about


these emails, and Tubridy told Yeatts to inform Inman that such
behavior would not be tolerated.
On December 15, 2005, Tubridy called Inman into his office
and fired him.

Inman claims that in that meeting, Tubridy said

that Inman did not fit the profile or model of what is


needed in a technical leader in terms of KPAs presentation to
potential buyers of the company.

J.A. 824.

Inman claims that

Tubridy said that KPA needed a more energetic person as leader


of

the

technical

revitalized company.

department,
J.A. 824.

for

the

appearance

of

Tubridy told Inman that he

wanted KPA work to be more oriented around financial results and


budgets tied to compensation, rather than the same old things
that [Inman] had provided.

J.A. 824.
8

Inman was replaced by

45-year-old

David

Operations.

Veasey,

who

had

been

Vice-President

of

When Veasey took over, KPA changed the position

somewhat,

eliminating

some

of

what

had

been

Inmans

responsibilities.
In 2003, Inman had been one of a small group of executives
permitted to buy KPA stock, and the expectation was that the
stock

would

become

very

valuable

once

the

company

Inman paid $32,700 when he bought the stock in 2003.

was

sold.

After he

was fired, KPA tendered a check for $41,000 to buy back the
stock, in accordance with the terms of the program under which
Inman

bought

claiming

that

the

stock.

he

was

Inman

has

wrongfully

never

terminated

cashed
and

the
that

check,
he

is

entitled to keep the stock, which, since the KPA sale, is worth
substantially more than the $41,000 that KPA tendered.
Inman eventually filed this action against KPA, 1 asserting
various claims under state and federal law, including a claim of
age discrimination.

Inman also sought a declaration that he was

entitled to keep the stock.


motion
granted

to

dismiss

summary

several

judgment

The district court granted KPAs


of

the

claims.

against

Inmans

The

court

later

age-discrimination

Inman also named as a defendant Klckner Pentaplast


Participations, a Luxembourgian entity formed to allow certain
of KPAs managers and officers to acquire an ownership interest
in KPAs parent company, Klckner Pentaplast Group.

claim.

Finding no other basis for Inmans wrongful termination

claim, the district court also granted summary judgment in KPAs


favor on Inmans request for a declaratory judgment that he was
entitled to retain the stock.

II.
On appeal, Inman contends that the district court erred in
granting summary judgment against him in light of the evidence
he presented.

We agree. 2

We review a grant of summary judgment de novo, viewing the


evidence in the light most favorable to the nonmovant, Inman.
See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,
283 (4th Cir. 2004) (en banc).
age

discrimination

under

the

To make a prima facie showing of


pretext

framework,

plaintiff-

employee must show that (1) he is a member of a protected class;


(2) he suffered an adverse employment action; (3) he was at the
relevant time performing his duties at a level that met his
employers

legitimate

expectations;

and

(4)

his

position

remained open or was filled by someone substantially younger.

Inman also raises a procedural claim, arguing that the


district court improperly looked to KPAs evidence on an issue
that the magistrate judge had refused to let Inman pursue during
discovery, and that this error warrants reversal.
Because of
our disposition of Inmans substantive argument, we do not
address this procedural claim.

10

See id. at 285.


incumbent

on

If the plaintiff makes that showing, it is

the

employer

to

articulate

legitimate,

nondiscriminatory reason for the adverse employment action.


id.

To

avoid

summary

judgment,

the

plaintiff

must

See

present

evidence showing that the employers stated reasons were not its
true reasons, but were a pretext for discrimination.

See id.

There is no question that Inman is a member of a protected


class, that he suffered an adverse employment action, and that
he was replaced by someone substantially younger.

The critical

questions before us are whether Inmans evidence showed that he


was meeting KPAs legitimate expectations and whether Inman has
established

that

KPAs

proffered

reasons

for

his

termination

at

the

legitimate-

were pretextual.
KPA

argues

expectation

that

step.

Inmans

KPA

claim

argues

that

fails

because

Inman

refused

to

develop the performance metrics Tubridy wanted for the technical


department, refused to support the salary freeze (and lied to
Tubridy

about

it),

and

belittled

and

harassed

the

human

resources staff, there was no genuine issue of material fact


regarding

whether

expectations.
First,

Inman

was

meeting

KPAs

legitimate

We are not persuaded.


some

evidence

tends

to

show

that

Inman

was

adequately performing--he received bonuses every year, and he


was singled out for praise by Tubridy at a company gathering
11

just a couple of weeks before he was fired.

Moreover, if Inman

has evidence from which a jury could conclude that the real
reason he was fired was his age, the jury could also conclude
that the deficiencies that KPA claimed existed in Inmans work
were exaggerated to cover up the age-based motivation for the
termination and that any such deficiencies were not sufficient
to prevent his performance from being adequate.
We conclude that Inman has in fact presented sufficient
evidence that KPAs proffered reasons for terminating Inman were
mere

pretext.

First,

the

summary

judgment

record

contains

evidence that if accepted by the jury would contradict KPAs


position

about

the

salary-freeze

issue--the

issue

maintains was the main reason that Inman was fired.


to

Inman,

Tubridy

did

not

tell

him

about

the

that

KPA

According

salary

freeze

before it was announced, and when Tubridy asked him the next day
if he had concerns about the salary freeze, Inman said that he
did.
told

This is directly contrary to Tubridys claim that Inman


him

he

supported

the

wage

freeze,

and

would

completely

undercut the claim that Tubridy wanted to fire Inman because he


lied about supporting the wage freeze.
Other evidence supports the conclusion that Inmans age was
the actual reason for his termination.

First, there are the

statements that Inman says Tubridy made when he fired him--that


Inman did not fit the model or profile of the energetic
12

person needed to project KPA as the revitalized company that


KPA wanted to present to potential buyers.
was

also

evidence

Consulting.

concerning

KPAs

J.A.

dealings

824.
with

There
Proudfoot

In October 2005, just a few months before Inman was

fired, KPA hired Proudfoot to review its operations and help


devise

plan

to

increase

operating expenses.
Inman,

but

then

its

efficiency

and

reduce

its

Tubridy and Veasey (who ultimately replaced

was

Vice

President

of

Operations)

met

with

Andreas Paetz of Proudfoot on October 27, 2005, to talk about


the project.

Paetz wanted four KPA employees to be assigned to

a task force that would conduct this review and said that they
should

be

young,

energetic,

future

people.

J.A.

970.

Tubridy made notes on a napkin during the Proudfoot meeting.


Tubridys napkin-notes included the phrase young, energ[etic].
J.A. 976.

Veasey had a follow-up meeting with Paetz the next

day, and Veaseys handwritten notes from that meeting stated


KPA team young energetic, future people.

J.A. 970.

KPA insists that these notations are meaningless because


Tubridy and Veasey were merely writing down what Paetz said, and
Paetz was not a decisionmaker with regard to Inmans employment.
See, e.g., Brinkley v. Harbour Recreation Club, 180 F.3d 598,
608

(4th

Cir.

1999)

([T]o

prove

discriminatory

animus,

the

derogatory remark cannot be stray or isolated, and unless the


remarks

upon

which

plaintiff
13

relies

were

related

to

the

employment

decision

discrimination.

in

question,

(internal

they

quotation

cannot

be

marks

and

evidence

of

alteration

omitted)), overruled on other grounds by Desert Palace, Inc. v.


Costa, 539 U.S. 90 (2003).

KPA also notes that Paetz, who is

German, explained in his deposition that when he said young,


he meant employees who were young with the companywho had not
worked for KPA long enough to develop political alliances, etc.
We conclude, however, that these arguments miss the mark.
First of all, even though Paetz was not a decisionmaker,
Tubridy was, and he found Paetzs reference to young employees
sufficiently significant to write it down.

Moreover, Paetzs

explanation of what he meant by young is not as clear as KPA


claims.

While Paetz did say that young referred to length of

employment, at another point in his testimony, he also seemed to


say that it meant chronological age.

In any event, given the

usual understanding of the word young, it is for a jury to


decide what Paetz meant, and, more importantly, what Tubridy
understood

the

reference

to

mean

when

he

wrote

it

down

and

whether Tubridy adopted the goal of having young, energetic


workers as his own. 3
3

KPA emphasizes that the selection of the task force is not


the adverse employment action of which Inman complains.
While
that is true, the evidence in question still tends to show that
Tubridy was thinking about the need for youth in the company in
the weeks before the alleged age discrimination occurred.

14

III.
In sum, we hold that the district court erred by granting
summary judgment against Inman on his age discrimination claim
and

therefore

also

on

his

request

for

declaratory

relief.

Accordingly, we vacate the judgment against Inman and remand to


the district court for further proceedings.

REVERSED AND REMANDED

15

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